Karnataka High Court
Smt. V M Kamallamma vs Smt Jayamma on 13 August, 2018
Author: S G Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF AUGUST 2018
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION NO.12122 OF 2016 (GM-CPC)
BETWEEN:
SMT. V. M. KAMALLAMMA
D/O MAHESHWARAPPA
AGED ABOUT 30 YEARS
RESIDING AT VADERAHALLI VILLAGE
KADUR TALUK
CHIKAMAGALUR DISTRICT-577 521. ... PETITIONER
(BY SRI.A.MADHUSUDHANA RAO, ADV.)
AND:
1. SMT. JAYAMMA
D/O LATE GANGAMMA
AND LATE V. RUDRAIAH
W/O CHANDRASHEKAR
AGED ABOUT 56 YEARS
RESIDING AT NO.39
4TH TEMPLE STREET
15TH CROSS, MALLESHWARAM
BANGALORE-560 003.
2. SRI. S.C. JAGADISH
S/O S. CHANDRASHEKAR
AGED ABOUT 37 YEARS
R/AT NO.14, NRUKSHA APARTMENT
2
16TH CROSS, MALLESHWARAM
BANGALORE-560 003.
3. SRI. S. CHANDRASHEKAR
S/O LATE S. M. SHANKARAIAH
AGED ABOUT 60 YEARS
R/AT NO.39, 4TH TEMPLE
STREET, 15TH CROSS
MALLESHWARAM
BANGALORE-560 003.
4. SRI. MARIGOWDA
S/O DODDEGOWDA
AGED ABOUT 53 YEARS
R/AT NO.158
3RD MAIN ROAD
SHARADAMBANAGARA
JALAHALLI
BANGALORE-560 013.
5. SRI.RADHAKRISHNA SETTY
S/O SUBBARAYA SETTY
AGED ABOUT 60 YEARS
R/AT NO.41/1, 11 MAIN
6TH CROSS, BAHUBALINAGAR
JALAHALLI,
BANGALORE-560 013.
6. SRI. M. CHANDRAPPA
S/O VEERABADRAPPA
AGED ABOUT 60 YEARS
R/AT NO.593, 4TH MAIN
MES ROAD, MUTHYALAMMANAGARA
GOKIL EXTENSION
BANGALORE-560 054.
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7. SMT. JYOTHILAKSHMI
W/O SRI RAMESH
AGED ABOUT 30 YEARS
R/AT NO.20, I MAIN
1 'A' CROSS, CAUVERY LAYOUT
NAGARABAVI ROAD
BANGALORE-560 072.
8. SRI. NAGESH MARALI
S/O LATE RANGANNA
AGED ABOUT 41 YEARS
R/AT NO.12, 1ST FLOOR
1ST CROSS, ANNAIPPA BLOCK
BANGALORE-560 020.
9. M.MAHESH
S/O MANCHAIAH
AGED ABOUT 39 YEARS
R/AT FLAT NO.158, 3RD MAIN ROAD
SHARADAMBA NAGAR
JALAHALLI
BANGALORE-560 013.
10.PRAVEEN KUMAR SHETTY
S/O VITTAL SHETTY
AGED ABOUT 36 YEARS
R/AT NO.67
EX-SERVICEMENT COLONY
R.T.NAGAR
BANGALORE-560 032. ... RESPONDENTS
(BY SRI.T.SHESHAGIRI RAO, ADV. FOR R1 & R2
R3 TO R10 -NOTICE DISPENSED WITH VIDE ORDER
DATED 8/3/2016)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
4
IMPUGEND ORDER DTD:25.01.2016 ON IA NO.17 IN
O.S.NO.210/2009 FOUND AT ANNEXURE-E PASSED BY
THE LEARNED SENIOR CIVIL JUDGE, NELAMANGALA
ALLOW THIS WRIT PETITION. AND ETC.,
THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner is before this Court, aggrieved by the order dated 25-01-2016 passed on I.A.No.17 in O.S.No.210/2009 on the file of the Senior Civil Judge, Nelamangala.
2. Even though the matter is posted for orders, with the consent of the parties, the matter is taken up for final disposal.
3. Defendant No.6 is the petitioner and Respondents No.1 and 2 are the plaintiffs in O.S.No.210/2009 filed for declaration and injunction against defendant No.1/respondent No.3 herein and other defendants who are purchasers through defendant No.1. After completion of cross-examination of P.W.1, Respondent No.2 herein who is 5 plaintiff No.2 in the suit filed an application I.A.No.17 under Order 22 Rule 10 read with Order I Rule 10(2) of CPC to come on record as plaintiff No.2. The applicant i.e. second respondent herein is the son of the first plaintiff and he was prosecuting the case as General Power of Attorney holder since 2013. It is stated in the application that the mother has executed a gift deed in his favour on 10-08-2004 subsequent to filing of the suit. The petitioner herein opposed the said application by filing objections stating that the applicant having knowledge and custody of the registered gift deed has not disclosed the same and there is inordinate delay in filing the application. The trial Court, by its order dated 25-01- 2016 allowed the application and permitted the second respondent herein to come on record as second plaintiff.
4. Heard the learned counsel for the petitioner as well as the respondents and perused the writ papers.
5. Learned counsel for the petitioner submits that the trial Court has not appreciated the conduct of the applicant/ 6 respondent No.2 herein. The applicant/respondent No.2 is the son of plaintiff No.1 and she had instituted the suit on 09-07-2004 for declaration and injunction against defendant No.1 her husband. The first plaintiff executes a gift deed in favour of her son i.e., respondent No.2 herein on 10-08-2004. Without disclosing the same before the Court, she executes a Special Power of Attorney on 08-02-2013 in favour of her son who is respondent No.2 herein to prosecute the suit. On behalf of his mother, son adduced the evidence as P.W.1. Since August 2004, till the filing of present application to come on record as second plaintiff, the fact of execution of gift deed is not disclosed to the court. It is his submission that during the course of cross-examination, the said document was confronted and thereafter the present application is filed. There is inordinate delay. It is his submission that the second respondent is not entitled for the relief sought for by him in I.A.No.17, for his conduct in suppressing the fact of gift deed.
7
6. Per contra, learned counsel for respondent No.2 submits that there is no delay in filing the application under Order XXII Rule 10 of CPC. At any stage, of the proceedings the application could be filed to come on record. It is his submission that due to lack of knowledge, the application was not filed to come on record as second plaintiff, even though the gift deed was executed in the year 2004.
7. Admittedly, the suit is filed for declaration and injunction by Jayamma against her husband S.Chandrasekhar who is defendant No.1 in the suit. The second respondent Sri.C.Jagadish is son of Jayamma/first plaintiff who executes Special Power of Attorney on 08-02-2013 in favour of her son Jagadish who adduced evidence on her behalf and he was also cross-examined. During the course of his cross-examination, the petitioner herein confronts the Gift deed dated 10-08-2004 and at that stage, the present application I.A.No.17 is filed under Order XXII Rule 10 of CPC by Jagadish to come on record as second 8 plaintiff. Admittedly, the gift deed was executed subsequent to filing of the suit. Order XXII Rule 10 of CPC permits a person to come on record, in favour of whom, interest is devolved or assigned or created in respect of the suit schedule property. In the present case also, the mother has created interest in the suit schedule property in favour of her son by executing gift deed dated 10-08-2004. Further it is also to be appreciated that the son was prosecuting the case and he had adduced evidence as P.W.1 and he was also cross- examined by defendant No.6. In that circumstance, allowing of I.A.No.17 would not prejudice the case of defendant No.6 who is the purchaser from defendant No.1. No irregularity or injustice is pointed out to interfere with the order passed by the trial Court under Article 227 of the Constitution of India. The trial court while allowing the application filed by respondent No.2 herein ought to have put the second respondent on terms, as there is inordinate delay in filing the application to come on record under Order XXII 9 Rule 10 of CPC. It is an appropriate case to impose cost on respondent No.2.
8. The writ petition is rejected as the petitioner has not made out any ground to interfere with the order passed by the trial Court in permitting the respondent No.2 herein to come on record as second plaintiff.
It is open for the petitioner/defendant No.6 to take all contentions which are open to him including the question of limitation with regard to impleading the second respondent as second plaintiff. The second respondent shall pay cost of Rs.10,000/- to the sixth defendant on the next date of hearing, before the trial court.
Sd/-
JUDGE mpk/-*CT:SK